Wednesday, October 13, 2004

Assault by throwing cup at police

In Davis v. Com., the Virginia Court of Appeals in an opinion by Chief Judge Fitzpatrick, joined by Judges Elder and Bumgardner, recited the following facts:

Officer Lisa Kusmin (Kusmin) was one of several police officers who responded to a report of “approximately a hundred subjects fighting in the park” near Third Street and Virginia Avenue. The participants began to scatter, and the officers “spread out through the neighborhood to make sure everybody was leaving the park and not causing trouble.”

Another officer initiated a traffic stop. Appellant walked to the driver’s side of the stopped vehicle. As Kusmin approached her, she became angry and loudly cursed Kusmin. She repeatedly called the officer a “bitch” and said she did not have to do what Kusmin requested. She attempted to evade Kusmin when she tried to stop appellant to speak with her and to determine what was in the cup she carried. When Kusmin and Sergeant Donald Fowler (Fowler) blocked appellant’s route of escape, appellant raised her cup above her shoulder and took aim at Kusmin. Kusmin demonstrated appellant’s actions for the court and testified that the cup moved with a whizzing motion rather than a tossing motion and that she thought the cup “was directed at [her]” and “was going to hit her.” Fowler, too, became “alarm[ed]” when appellant “raised her hand,” and Fowler “immediately reached out” and made “physical contact” with appellant’s left shoulder and arm to throw her off balance. It took three officers to effectuate appellant’s arrest.

The Court affirmed the defendant's convictions for assault and disorderly conduct.